Citation Nr: 0633278
Decision Date: 10/27/06 Archive Date: 11/14/06
DOCKET NO. 03-07 729 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to service connection for cataracts.
2. Entitlement to service connection for vertigo.
3. Entitlement to service connection for headaches.
4. Entitlement to a higher initial evaluation for bilateral
hearing loss, evaluated as 0 percent disabling from October
29, 2001, and 40 percent disabling from October 1, 2003.
5. Entitlement to an evaluation in excess of 30 percent for
shell fragment wound, left forearm, with residual weakness,
left hand.
6. Entitlement to an initial compensable evaluation for a
residual scar, shell fragment wound, left brow.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. J. N. Driever, Counsel
INTRODUCTION
The veteran had active service from April 1941 to October
1945.
These claims come before the Board of Veterans' Appeals
(Board) on appeal of an August 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Houston, Texas.
In October 2006, for good cause shown, namely, the veteran's
advanced age, the Board granted the veteran's motion to
advance this case on the Board's docket pursuant to the
authority of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R.
§ 20.900(c) (2005).
The Board addresses the claims of entitlement to service
connection for cataracts, vertigo and headaches in the REMAND
portion of the decision below and REMANDS those claims to the
RO via the Appeals Management Center (AMC), in Washington,
D.C.
FINDINGS OF FACT
1. VA provided the veteran adequate notice and assistance
with regard to the claims being decided.
2. Prior to October 1, 2003, the veteran had level VI
hearing acuity in his right ear and level I hearing acuity in
his left ear.
3. Since October 1, 2003, the veteran has had level XI
hearing acuity in his right ear and level V hearing acuity in
his left ear.
4. The veteran is right handed.
5. Residuals of a gunshot wound of the veteran's left
forearm, including left hand weakness, are severely
disabling, but do not cause ankylosis of scapulohumeral
articulation, the elbow, fingers or wrist, limitation of
flexion of the non-dominant forearm to 45 degrees, limitation
of extension of the nondominant forearm to 110 degrees,
fibrous union of the humerus, impairment of the non-dominant
flail joint, or nonunion of the radius and ulna with a flail
false joint.
6. The scar above the veteran's left eyebrow measures one
centimeter, is barely visible and asymptomatic, and causes no
functional loss.
7. None of the disabilities at issue in this decision is so
exceptional or unusual with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards.
CONCLUSIONS OF LAW
1. The criteria for entitlement to a higher initial
evaluation for bilateral hearing loss, evaluated as 0 percent
disabling from October 29, 2001, and 40 percent disabling
from October 1, 2003, have not been met. 38 U.S.C.A. §§
1155, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1,
4.2, 4.7, 4.10, 4.85, Diagnostic Code 6100 (2005).
2. The criteria for entitlement to an evaluation in excess
of 30 percent for shell fragment wound, left forearm, with
residual weakness, left hand, have not been met. 38 U.S.C.A.
§§ 1155, 5102, 5103, 5103A (West 2002); 38 C.F.R.
§§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.55, 4.56, 4.73,
Diagnostic Code 5307 (2005).
3. The criteria for entitlement to an initial compensable
evaluation for a residual scar, shell fragment wound, left
brow, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103,
5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7,
4.10, 4.118, Diagnostic Codes 7800-7805 (2005); 38 C.F.R. §
4.118, Diagnostic Codes 7800, 7803-7805 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's Duties to Notify and Assist
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002), became law. Regulations
implementing the VCAA were then published at
66 Fed. Reg. 45,620, 45,630-32 (Aug. 29, 2001) and codified
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2005). The
VCAA and its implementing regulations are applicable to this
appeal.
The VCAA and its implementing regulations provide that VA
will notify the claimant and the claimant's representative,
if any, of the information and medical or lay evidence not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion of the evidence the
claimant is to provide and which portion of the evidence VA
will attempt to obtain on the claimant's behalf. They also
require VA to assist a claimant in obtaining evidence
necessary to substantiate a claim, but such assistance is not
required if there is no reasonable possibility that such
assistance would aid in substantiating the claim.
The United States Court of Appeals for Veterans Claims
(Court) has mandated that VA ensure strict compliance with
the provisions of the VCAA. See Quartuccio v. Principi, 16
Vet. App. 183 (2002). In this case, with regard to the
claims being decided, VA strictly complied with the
notification and assistance provisions of the VCAA such that
the Board's decision to proceed in adjudicating these claims
does not prejudice the veteran in the disposition thereof.
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
A. Duty to Notify
The Court has indicated that notice under the VCAA must be
given prior to an initial unfavorable decision by the agency
of original jurisdiction. In Pelegrini v. Principi
(Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court
also indicated that the VCAA requires VA to provide notice,
consistent with the requirements of 38 U.S.C.A. § 5103(A), 38
C.F.R. § 3.159(b), and Quartuccio, that informs the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim, (2) that VA will seek to
provide, and (3) that the claimant is expected to provide.
In what can be considered a fourth element of the requisite
notice, the Court further held that, under 38 C.F.R. §
3.159(b), VA must request the claimant to provide any
evidence in his possession that pertains to the claim. Id.
at 120-21. The Court clarified that VA's regulations
implementing amended section 5103(a) apply to cases pending
before VA on November 9, 2000, even if the RO decision was
issued before that date, and that, where notice was not
mandated at the time of the initial RO decision, it was not
error to provide remedial notice after such initial decision.
Id. at 120, 122-24.
On March 3, 2006, the Court held that the aforementioned
notice requirements apply to all five elements of a service
connection claim, including: (1) veteran status; (2)
existence of disability; (3) a connection between service and
disability; (4) degree of disability; and (5) effective date
of disability. Dingess/Hartman v. Nicholson, 19 Vet. App.
473, 484 (2006). The Court further held that VCAA notice
must inform the claimant that, if service connection is
granted and an initial disability rating assigned, an
effective date will be assigned such an award and explain to
him how it will determine the appropriate effective date to
be assigned. Id. at 486.
In this case, the RO provided the veteran VCAA notice on his
claims for service connection and claim for an increased
evaluation by letters dated November 2001 and January 2002,
before initially deciding those claims in a rating decision
dated August 2002. The veteran then appealed, in part, the
evaluations the RO initially assigned his service-connected
disabilities. That portion of the veteran's appeal thus
ensues not from the original claims for service connection,
but from a notice of disagreement, which raised new claims
for higher initial evaluations, a downstream element of the
original claims. In response, in a letter dated June 2005,
the RO sent the veteran additional notice on the newly raised
claims, but the timing of the initial two notice letters
reflects compliance with the requirements of the law as found
by the Court in Pelegrini II.
The content of the notice letters also reflects compliance
with the requirements of the law as found by the Court in
Pelegrini II. In the November 2001, January 2002 and June
2005 notice letters, the RO acknowledged the veteran's
claims, noted what the evidence needed to show to
substantiate those claims, listed the type of evidence that
would best do so, informed the veteran of the VCAA and VA's
duty to assist and explained to him that it was developing
his claims pursuant to that duty. The RO identified the
evidence it had received in support of the veteran's claims
and the evidence VA was responsible for securing. The RO
indicated that it would make reasonable efforts to help the
veteran get the evidence necessary to support his claims
provided he identified the sources thereof, but that
ultimately, it was his responsibility to ensure the RO's
receipt of all such evidence. The RO advised the veteran to
sign the enclosed forms authorizing the release of his
treatment records if he wished VA to obtain them on his
behalf and to identify or send directly to VA all pertinent
evidence, including that which was requested.
The content of the notice letters does not reflect compliance
with the requirements of the law as found by the Court in
Dingess/Hartman. In the aforementioned notice letters, the
RO did not provide the veteran information on effective
dates. However, the veteran has not been prejudiced as a
result thereof. Bernard v. Brown, 4 Vet. App. at 394.
Rather, the RO corrected this procedural deficiency in March
2006, when it sent the veteran another letter that included
such information.
B. Duty to Assist
VA made reasonable efforts to identify and obtain relevant
records in support of the veteran's claims. 38 U.S.C.A. §
5103A(a), (b), (c) (West 2002). Specifically, the RO secured
and associated with the claims file all evidence the veteran
identified as being pertinent to the claims being decided,
including service medical records and VA treatment records.
In addition, the RO conducted medical inquiry in an effort to
substantiate the claims being decided by affording the
veteran VA examinations, during which examiners discussed the
severity of the veteran's hearing loss and residuals of the
gunshot wounds of his left forearm and forehead.
Under the facts of this case, "the record has been fully
developed," and "it is difficult to discern what additional
guidance VA could have provided to the veteran regarding what
additional evidence he should submit to substantiate his
claim[s]." Conway v. Principi, 353 F.3d 1369 (Fed. Cir.
2004); see also Livesay v. Principi, 15 Vet. App. 165, 178
(2001) (en banc) (observing that the VCAA is a reason to
remand many, many claims, but it is not an excuse to remand
all claims); Reyes v. Brown, 7 Vet. App. 113, 116 (1994);
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both
observing circumstances as to when a remand would not result
in any significant benefit to the claimant); Mayfield v.
Nicholson, 19 Vet. App. 103, 115 (2005), rev'd on other
grounds, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006) (holding that
an error, whether procedural or substantive, is prejudicial
when the error affects a substantial right so as to injure an
interest that the statutory or regulatory provision involved
was designed to protect to the extent that it affects the
essential fairness of the adjudication).
II. Analysis of Claims
The veteran claims entitlement to higher initial evaluations
for bilateral hearing loss and a scar above the left forehead
and entitlement to an increased evaluation for residuals of a
gunshot wound of the left forearm.
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Rating Disabilities (rating schedule). 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10
(2005). If two evaluations noted in the rating schedule are
potentially applicable, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that evaluation; otherwise, the
lower evaluation will be assigned. 38 C.F.R. § 4.7 (2005).
Where an award of service connection for a disability has
been granted and the assignment of an initial evaluation for
that disability is disputed, separate or "staged"
evaluations may be assigned for separate periods of time
based on the facts found. Fenderson v. West, 12 Vet. App. at
125-126. In other cases, the present level of disability is
of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
A disability may require re-evaluation in accordance with
changes in a veteran's condition. In determining the level
of current impairment, it is thus essential that the
disability be considered in the context of the entire
recorded history. 38 C.F.R. § 4.1.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. The examination on which an evaluation is based
must adequately portray the anatomical damage, and the
functional loss, with respect to all of these elements. The
functional loss may be due to absence of part, or all, of the
necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity or the
like. 38 C.F.R. § 4.40, 4.45 (2005).
As regards the joints, the factors of disability reside in
reductions of their normal excursion of movements in
different planes. Inquiry will be directed to these
considerations: less movement than normal; more movement than
normal; weakened movement; excess fatigability;
incoordination, impaired ability to execute skilled movements
smoothly; and pain on movement, swelling, deformity or
atrophy of disuse. Instability of station, disturbance of
locomotion, interference with sitting, standing and weight-
bearing are related considerations. 38 C.F.R.
§ 4.45 (2005); see also DeLuca v. Brown, 8 Vet. App. at 206-7
(holding that VA's review of a service-connected
musculoskeletal disability must include an assessment of the
functional impairment caused by that disability and that, if
the service-connected disability involves a joint rated based
on limitation of motion, adequate consideration must be given
to functional loss due to pain under 38 C.F.R. § 4.40, and
functional loss due to weakness, fatigability, incoordination
or pain on movement of a joint under 38 C.F.R. § 4.45).
Painful, unstable, or maligned joints due to healed injury
are entitled to at least the minimum compensable evaluation
for the joint. 38 C.F.R. § 4.59 (2005).
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
A. Bilateral Hearing Loss
The RO has evaluated the veteran's bilateral hearing loss as
noncompensably (zero percent) disabling from October 29, 2001
and 40 percent disabling from October 1, 2003, pursuant to
38 C.F.R. § 4.85 Diagnostic Code (DC) 6100 (2005).
Hearing loss disability evaluations range from noncompensable
to 100 percent based on organic impairment of hearing acuity,
as measured by controlled speech discrimination tests, in
conjunction with the average hearing threshold level, as
measured by pure tone audiometry tests in the frequencies
1,000, 2,000, 3,000, and 4,000 cycles per second. The rating
schedule establishes 11 auditory acuity levels designated
from level I for essentially normal acuity through level XI
for profound deafness. 38 C.F.R. § 4.85 (2005). The degree
of disability resulting from service-connected defective
hearing is mechanically determined by applying the numeric
designations assigned to the rating schedule after
audiometric evaluations are conducted. See Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992). Results of the
evaluations are analyzed using Tables VI, VIA and VII,
identified in 38 C.F.R. § 4.85.
In cases of exceptional hearing loss, i.e. when the puretone
threshold at each of the four specified frequencies (1000,
2000, 3000, and 4000 Hertz) is 55 decibels or more, the
rating specialist will determine the Roman numeral
designation for hearing impairment from either Table VI or
Table VIa, whichever results in the higher numeral. Each ear
will be evaluated separately. 38 C.F.R. § 4.86(a) (2005).
When the puretone threshold is 30 decibels or less at 1000
hertz, and 70 decibels or more at 2000 hertz, the rating
specialist will determine the Roman numeral designation for
hearing impairment from either Table VI or Table VIa,
whichever results is the higher numeral. That numeral will
then be elevated to the next higher Roman numeral. Each ear
will be evaluated separately. 38 C.F.R. § 4.86(b) (2005).
In this case, for the reasons noted below, the evidence of
record establishes that the veteran's hearing loss disability
pictures, including from October 29, 2001 and from October 1,
2003, do not more nearly approximate the criteria for higher
initial evaluations under DC 6100.
The first indication of record of hearing loss by VA
standards is a report of VA audio examination conducted in
February 2000. On that date, an audiometer revealed the
following pure tone thresholds, in decibels:
HERTZ
1000
2000
3000
4000
RIGHT
55
55
65
70
LEFT
35
35
60
70
An examiner noted average puretone decibel loss of 61 in the
right ear and 50 in the left ear and speech discrimination of
64 percent in the right ear and 94 percent in the left ear.
He diagnosed moderate to severe sensorineural hearing loss.
More severe hearing loss was shown during a VA audio
examination conducted on October 1, 2003. On that date, an
audiometer revealed the following pure tone thresholds, in
decibels:
HERTZ
1000
2000
3000
4000
RIGHT
55
55
65
70
LEFT
40
45
65
70
An examiner noted average puretone decibel loss of 65 in the
right ear and 55 in the left ear and speech discrimination of
18 percent in the right ear and 70 percent in the left ear.
He diagnosed moderate to profound sensorineural hearing loss.
The above evidence establishes that, prior to October 1,
2003, the veteran had level VI hearing acuity in his right
ear and level I hearing acuity in his left ear. The Board
determined this by applying to Table VI the only puretone
threshold averages shown prior to October 26, 2003 (61 in the
right ear and 50 in the left ear) and the only speech
discrimination scores shown during the same time period (64
percent in the right ear and 94 percent in the left ear).
Under 38 C.F.R. § 4.85, Table VII, DC 6100, these findings
establish the veteran's entitlement to an initial
noncompensable evaluation, from October 29, 2001 to September
30, 2003.
The above evidence also establishes that, since October 1,
2003, the veteran has had level XI hearing acuity in his
right ear and level V hearing acuity in his left ear. The
Board determined this by applying to Table VI the only
puretone threshold averages shown since October 1, 2003 (65
in the right ear and 55 in the left ear) and the only speech
discrimination scores shown during the same time period (18
percent in the right ear and 70 percent in the left ear).
Under 38 C.F.R.
§ 4.85, Table VII, DC 6100, these findings establish the
veteran's entitlement to an initial 40 percent evaluation,
from October 1, 2003.
The Board acknowledges the veteran's contention that the
results of the October 2003 audiometric testing are invalid
because the testing took place in a sound-controlled room,
rather than in an environment that would account for the
effect of a claimant's hearing loss on his ability to
function under the ordinary conditions of life, including
employment. However, as the veteran pointed out, this type
of testing is standard procedure with regard to VA hearing
claims. Certainly such testing complies with VA regulations,
which the Board is bound to apply in deciding this claim.
See 38 C.F.R. § 4.85 (2005).
B. Residuals, Shell Fragment Wound, Left Forearm
During service in May 1945, the veteran suffered a moderate,
penetrating shrapnel wound of his left lower arm. This wound
caused a two inch laceration and necessitated opening,
debridement and sulfa dressing. X-rays showed retained
foreign bodies in the left wrist region. As a result of this
wound, the veteran was hospitalized for a month, after which
medical professionals noted that the veteran had improved and
his wound had healed well. On discharge in October 1945, an
examiner noted a slightly tender three and a half inch scar
over the dorsum of the lower third of the veteran's left
forearm, a left grip that was 25 percent of normal, absent
ulnar deviation of the left wrist, and anesthesia for three
inches below the scar.
In a rating decision dated November 1945, the RO granted the
veteran service connection for residuals of the in-service
shrapnel wound. Since then, the RO has separately service
connected the veteran for nerve damage and a scar of the left
brow, both secondary to the in-service shrapnel wound. The
veteran now claims entitlement to an evaluation in excess of
30 percent for those residuals causing muscle injury.
According to written statements submitted during the course
of this appeal, the 30 percent evaluation assigned such
residuals does not accurately reflect the severity of his
left arm and left hand symptomatology. Such symptomatology
allegedly causes severe impairment in the veteran's ability
to use his left forearm, wrist, hand and fingers.
The RO has evaluated residuals of the shell fragment wound of
the veteran's left forearm as 30 percent disabling pursuant
to DC 5307, which governs ratings of injuries to muscle group
VII. This DC provides that a 20 percent evaluation is
assignable for moderately severe disability of the non-
dominant group VII muscle. A 30 percent evaluation is
assignable for severe disability of the non-dominant group
VII muscle. To be assigned an evaluation in excess of 30
percent under DC 5307, the evidence must establish disability
of the dominant group VIII muscle. 38 C.F.R. § 4.73, DC 5307
(2005).
The factors to be considered in evaluating disabilities from
healed wounds involving muscle groups are set forth in 38
C.F.R. §§ 4.55, 4.56 (2005). For VA rating purposes, the
cardinal signs and symptoms of muscle disability are loss of
power, weakness, lowered threshold of fatigue, fatigue-pain,
impairment of coordination and uncertainty of movement. 38
C.F.R. § 4.56(c). Disabilities rated under DCs 5301 to 5323
are to be classified as slight, moderate, moderately severe
or severe. 38 C.F.R. § 4.56(d).
A moderately severe disability of the muscles consists of a
through and through or deep penetrating wound by a small
high-velocity missile or large low-velocity missile, with
debridement, prolonged infection, or sloughing of soft parts,
and intermuscular scarring. A history with regard to this
type of injury should include prolonged hospitalization in
service for treatment of a wound and consistent complaints of
symptoms of muscle wounds. Objective findings should include
entrance and (if present) exit scars indicating the track of
the missile through one or more muscle groups, with loss of
deep fascia, muscle substance or normal firm resistance as
compared with the sound side. 38 C.F.R. § 4.56(d)(3).
A severe disability of the muscles consists of a through and
through or deep penetrating wound due to a high velocity
missile or large or multiple high velocity missiles, or with
a shattering bone fracture or open comminuted fracture with
extensive debridement, prolonged infection, or sloughing of
soft parts, intermuscular binding and scarring. The history
and complaints with regard to this type of injury should
include cardinal signs and symptoms of muscle disability
(loss of power, weakness, lowered threshold of fatigue,
fatigue-pain, impairment of coordination, and uncertainty of
movement) worse than those shown for moderately severe muscle
injuries, and if present, evidence of an inability to keep up
with work requirements. Objective findings should include
ragged, depressed, and adherent scars indicating wide damage
to muscle groups in the missile track, loss of deep fascia or
muscle substance on palpation, soft flabby muscles in the
wound area, and swollen and hardened muscles in contraction.
Tests of strength, endurance, or coordination movements
compared with the corresponding muscles of the uninjured side
indicate severe impairment of function. Another sign of
severe muscle disability is x-ray evidence of minute multiple
scattered foreign bodies indicating intermuscular trauma and
an explosive effect of a missile. 38 C.F.R. § 4.56(d)(4).
During VA examinations conducted during the course of this
appeal, examiners noted that the veteran is right handed.
Therefore, the veteran is currently in receipt of the maximum
evaluation allowed under DC 5307 for disability of the non-
dominant group VII muscle. Therefore, to prevail in his
claim, the evidence must establish his entitlement to an
evaluation in excess of 30 percent under another pertinent
DC. According to all other pertinent DCs, an evaluation in
excess of 30 percent is assignable for ankylosis of
scapulohumeral articulation, the elbow, fingers or wrist,
limitation of flexion of the non-dominant forearm to 45
degrees, limitation of extension of the nondominant forearm
to 110 degrees, fibrous union of the humerus, impairment of
the non-dominant flail joint, or nonunion of the radius and
ulna with a flail false joint. 38 C.F.R. § 4.71a, DCs 5200,
5202, 5205-5207, 5209, 5210, 5214, 5216-5218, 5220-5221
(2005).
In this case, the evidence establishes that the veteran's
left forearm/hand disability picture does not more nearly
approximate the criteria for an evaluation in excess of 30
percent under any pertinent DC.
As previously indicated, on discharge from service, residuals
of the in-service shell fragment wound included a loss of
grip strength, absent ulnar deviation of the left wrist and
nerve damage below the scar. The latter two residuals are
now separately service connected and contemplated in the 10
percent evaluation assigned left ulnar neuropathy.
Following discharge, beginning in August 1947, the veteran
underwent VA examinations of his left upper extremity.
During examinations, including those conducted in February
2002 and October 2003, medical professionals noted left arm
pain, mild left elbow weakness, a well-healed scar on the
left forearm, extension of the left ring finger diminished by
25 percent, extension of the left little finger diminished by
50 percent, and limitation of motion of the left elbow with
pain. No medical professional noted ankylosis of any joint
of the left upper extremity, limitation of flexion of the
non-dominant forearm to 45 degrees, limitation of extension
of the nondominant forearm to 110 degrees, or impairment of
the humerus, flail joint, radius or ulna.
Accordingly, an evaluation in excess of 30 percent is not
assignable for residuals of the shrapnel wound of the left
forearm, including weakness of the left hand, under any
applicable DC. An evaluation in excess of 30 percent is also
not assignable under 38 C.F.R. §§ 4.40, 4.45, as interpreted
in DeLuca, 8 Vet. App. at 202, because the 30 percent
evaluation initially assigned the veteran's left forearm
disability contemplates the functional loss caused by the
pain, weakness and limitation of motion associated with the
in-service shrapnel wound, including during flare-ups. Other
than a scar of the left forehead, which is separately service
connected and discussed below, and nerve damage, which is
also separately service connected, there is no objective
evidence of record establishing that the veteran experiences
any other symptoms causing additional muscle injury or
additional functional impairment not contemplated by the 30
percent evaluation.
C. Scar, Left Brow
The veteran contends that he should be assigned a compensable
evaluation for the scar on his left forehead because, below
that scar, is a retained metal fragment. He does not allege
that that fragment, or the scar causes any functional loss.
The RO has evaluated the scar over the veteran's left brow as
noncompensably (0 percent) disabling pursuant to DC 7805.
Effective August 30, 2002, VA amended the criteria for rating
skin disabilities, which include scars evaluated under DC
7805. See 67 Fed. Reg. 49,590 (July 31, 2002). Where the
law or regulations governing a claim change while the claim
is pending, the version most favorable to the claimant
applies, absent congressional intent to the contrary. See
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). For the
period prior to the effective date of the change, however,
the Board must apply the former version of the regulation.
VAOPGCPREC 3-2000 (April 10, 2000), 65 Fed. Reg. 33,422
(2000).
Prior to August 30, 2002, scars that were not the result of
burns were to be rated under DCs 7800 and 7803 to 7805.
Under DC 7800, a noncompensable evaluation was assignable for
a slight disfiguring scar of the head, face or neck. A 10
percent evaluation was assignable for a moderate disfiguring
scar of the head, face or neck. 38 C.F.R. § 4.118, DC 7800
(2001). Under DC 7803, a 10 percent evaluation was
assignable for scars, superficial, poorly nourished, with
repeated ulceration. 38 C.F.R. § 4.118, DC 7803 (2001).
Under DC 7804, a 10 percent evaluation was assignable for
scars that were superficial, tender and painful on objective
demonstration. 38 C.F.R. § 4.118, DC 7804 (2001). The 10
percent evaluation was to be assigned when the requirements
were met even though the location may have been on the tip of
a finger or toe, and the evaluation was not to exceed the
amputation value for the limited involvement. 38 C.F.R. §
4.118, DC 7804, Note (2001). Under DC 7805, other types of
scars were to be rated based on limitation of function of the
part affected. 38 C.F.R. § 4.118, DC 7804 (2001).
As of August 30, 2002, scars of the head face or neck are to
be rated under DC 7800, based on level of disfigurement. A
10 percent evaluation is assignable for a scar with one
characteristic of disfigurement. 38 C.F.R. § 4.118, DC 7800
(2005). The eight characteristics of disfigurement include:
(1) five or more inches in length; (2) at least one-quarter
inch wide at widest part; (3) surface contour elevated or
depressed on palpation; (4) adherent to underlying tissue;
(5) skin hypo- or hyper-pigmented in an area exceeding six
square inches; (6) skin texture abnormal in an area exceeding
six square inches; (7) underlying soft tissue missing in an
area exceeding six square inches; and (8) skin indurated or
inflexible in an area exceeding six square inches. 38 C.F.R.
§ 4.118, DC 7800, Note (1) (2005).
Scars other than of the head, face, or neck, which are deep
or cause limited motion, are to be rated under DC 7801. DC
7801 provides that a 10 percent evaluation is assignable for
such scars when the area or areas exceed 6 square inches (39
sq. cm.). A 20 percent evaluation is assignable when the
area or areas exceed 12 square inches (77 sq. cm.). 38
C.F.R. § 4.118, DC 7801 (2005). Scars in widely separated
areas, as on two or more extremities or on anterior and
posterior surfaces of extremities or trunk, will be
separately rated and combined in accordance with
§ 4.25 of this part. A deep scar is one associated with
underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801,
Note (1), (2) (2005).
Scars, other than of the head, face, or neck, which are
superficial and do not cause limited motion, are to be rated
under DC 7802. DC 7802 provides that a 10 percent evaluation
is assignable for area or areas of 144 square inches (929 sq.
cm.) or greater. 38 C.F.R. § 4.118, DC 7802 (2005). Scars
in widely separated areas, as on two or more extremities or
on anterior and posterior surfaces of extremities or trunk,
will be separately rated and combined in accordance with §
4.25 of this part. A superficial scar is one not associated
with underlying soft tissue damage. 38 C.F.R. § 4.118, DC
7802, Note (1), (2) (2005).
Under DC 7803, a 10 percent evaluation is assignable for
scars that are superficial and unstable. 38 C.F.R. § 4.118,
DC 7803 (2005). An unstable scar is one where, for any
reason, there is frequent loss of covering of skin over the
scar. A superficial scar is one not associated with
underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7803,
Note (1), (2) (2005).
Under DC 7804, a 10 percent evaluation is assignable for
scars that are superficial and painful on examination. 38
C.F.R. § 4.118, DC 7804 (2005). A 10 percent evaluation will
be assigned for a scar on the tip of a finger or toe even
though amputation of the part would not warrant a compensable
evaluation. (See § 4.68 of this part on the amputation
rule.) 38 C.F.R. § 4.118, DC 7804, Note (2) (2005).
Other types of scars are to be rated based on limitation of
function of affected part. 38 C.F.R. § 4.118, DC 7805 (2005).
Based on the reasoning that follows, the evidence establishes
that the veteran's left brow scar disability picture does not
more nearly approximate the criteria for an initial
compensable evaluation.
A medical professional first noted such scar during a VA
scars examination conducted in February 2002. The examiner
also noted a small fragment lodged beneath the scar
subcutaneously. On that date, the veteran did not note any
symptoms associated with the scar or fragment and did not
indicate that the scar or fragment caused any impairment in
his ability to function. The examiner described the scar as
small.
Since then, the scar and fragment have only been mentioned
once, during a VA scars examination conducted in October
2003. On that date, the veteran did not note any symptoms
associated with the scar or fragment and did not indicate
that the scar or fragment caused any impairment in his
ability to function. The examiner described the scar as
small, one-centimeter in diameter, disfiguring, and barely
visible.
There is no evidence of record establishing that the scar is
poorly nourished, with repeated ulceration, tender and
painful on objective demonstration, unstable or deep, causes
limitation of function of the head, or exceeds 6 square
inches. Moreover, to the extent the scar is considered
disfiguring under the former criteria for rating skin
disabilities (scar does not meet any of the eight
characteristics of disfigurement under the revised criteria),
such disfigurement is no more than slight. According to the
same VA examiner who characterized the scar as disfiguring,
such scar is also barely visible. Accordingly, an initial
compensable evaluation may not be assigned the scar under DC
7805 or any other pertinent DC, former or revised.
D. Conclusion
In an exceptional case, a higher evaluation is available on
an extraschedular basis. In this case, however, there is no
indication of record that the schedular criteria are
inadequate to evaluate any of the disabilities at issue in
this decision. The veteran alleges that the residual
weakness associated with his shell fragment wound of the left
forearm, alone, markedly interferes with his employability.
However, the evidence does not support this allegation.
Rather, it shows that, to the extent such disability
interferes with the veteran's employability, it does so in a
contributory manner. By the veteran's own admission, other
service-connected disabilities, including nerve damage
secondary to the shell fragment wound, too play a role in any
industrial impairment thought to exist. The medical evidence
also does not establish that any disability at issue in this
decision necessitates frequent periods of hospitalization.
In light of the foregoing, the Board finds that the veteran's
claims for higher initial/increased evaluations do not
present such exceptional or unusual disability pictures as to
render impractical the application of the regular schedular
standards. The Board is therefore not required to remand
these claims to the RO for the procedural actions outlined in
38 C.F.R. § 3.321(b)(1) (2005). See Bagwell v. Brown, 9 Vet.
App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96
(1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
The Board recognizes that the rating schedule is designed to
accommodate changes in condition and that the veteran may be
awarded an increased evaluation in the future should any of
his disability pictures change. See 38 C.F.R. § 4.1. At
present, however, the evaluations assigned the disabilities
at issue are the most appropriate given the medical evidence
of record.
In sum, the Board concludes that the criteria for entitlement
to a higher initial evaluation for bilateral hearing loss,
evaluated as 0 percent disabling from October 29, 2001, and
40 percent disabling from October 1, 2003, entitlement to an
evaluation in excess of 30 percent for shell fragment wound,
left forearm, with residual weakness, left hand, and
entitlement to an initial compensable evaluation for a
residual scar, shell fragment wound, left brow, have not been
met. In reaching this decision, the Board considered the
complete history of the disabilities at issue as well as the
current clinical manifestations and the effect each
disability has on the earning capacity of the veteran. 38
C.F.R. §§ 4.1, 4.2, 4.41 (2005). The Board also considered
the applicability of the benefit-of-the-doubt doctrine, but
in each case, there is not an approximate balance of positive
and negative evidence of record. Therefore, reasonable doubt
could not be resolved in the veteran's favor. Rather, as a
preponderance of the evidence is against the veteran's
claims, such claims must be denied.
ORDER
A higher initial evaluation for bilateral hearing loss,
evaluated as 0 percent disabling from October 29, 2001, and
40 percent disabling from October 1, 2003, is denied.
An initial evaluation in excess of 30 percent for shell
fragment wound, left forearm, with residual weakness, left
hand, is denied.
An initial compensable evaluation for a residual scar, shell
fragment wound, left brow, is denied.
REMAND
The veteran also claims entitlement to service connection for
cataracts, vertigo and headaches. He asserts that he
developed these disorders in service secondary to his
extensive exposure to heat from flame throwers and the firing
of bazookas and the noise associated therewith, his in-
service shrapnel wounds, including of the left forehead,
and/or his in-service bout of malaria. Additional action is
necessary before the Board decides these claims.
First, in written statements dated December 2001 and
September 2003 and during VA scars, neurological and
peripheral nerves examinations conducted in February 2002 and
October 2003, the veteran indicated that he had received
treatment for the medical conditions at issue in this Remand
at VA facilities in Beaumont, Texas, Houston, Texas, and
Milwaukee, Wisconsin. He also indicated that he had received
pertinent treatment by private doctors, had cataracts removed
in 1967, underwent an evaluation by an ear, nose and throat
specialist in 1982, and underwent right ear surgery in 1981
or 1982. The claims file now includes some records from the
VA facilities in Houston, Texas and Milwaukee, Wisconsin.
With regard to the former facility, it includes a list of
scheduled visits from 1990 to 2004, but not the treatment
records compiled during that time frame. With regard to the
latter facility, it does not include any records dated from
1968 to 1973. (In a VA Form 10-7131, a representative from
that facility indicated that they had sent all records dated
since November 28, 1973.). The claims file also does not
include records of the veteran's treatment by private
doctors, or records of the procedures and evaluations the
veteran underwent in 1967, 1981 and 1982. Such records are
pertinent to the claims being remanded and, as such, they
should be obtained and associated with the claims file on
remand.
Second, since the veteran perfected his appeal, VA has
afforded him VA examinations, during which examiners were to
address the etiology of the medical conditions at issue in
this Remand. However, the reports of these examinations
conflict and are inadequate to decide these claims. They do
not include opinions regarding whether, as alleged, the
veteran's cataracts, vertigo and/or headaches are related to
the veteran's in-service exposure to heat from flame throwers
and the firing of bazookas and the noise associated
therewith, his in-service shrapnel wounds, including of the
left forehead, and/or his in-service bout of malaria.
Additional medical inquiry is thus needed to address this
allegation.
Based on the foregoing, the Board remands this case for the
following action:
1. Contact the veteran and request him
to identify in writing the names and
addresses of all health care providers,
both VA and private, who have treated
him for the medical conditions at issue
in this REMAND since his discharge from
service and whose records are not
already in the claims file.
2. After obtaining any necessary
authorization, obtain and associate with
the claims file all outstanding treatment
records. If any such records are
unavailable, so note this fact in writing
in the claims file.
3. Afford the veteran a VA examination in
support of his claims for service
connection. Forward the claims file to an
examiner who has not previously evaluated
the veteran. Request the examiner to
review all pertinent documents therein,
including the veteran's written
allegations, and ask the examiner to
confirm in his written report that he
conducted such a review. Following a
thorough evaluation, during which all
indicated tests are performed, the
examiner should:
a) determine whether the
veteran has cataracts or
residuals thereof, vertigo
and/or headaches;
b) for each of the aforementioned
disorders that exists, opine whether
it is at least as likely as not
related to the veteran's period of
active service, including his
extensive in-service exposure to
heat from flame throwers and the
firing of bazookas, his significant
exposure to noise while serving as a
rifleman, his in-service shrapnel
wounds, including of the left
forehead, and/or his in-service bout
of malaria; and
c) provide detailed rationale, with
specific references to the record,
for the opinions provided.
4. Readjudicate the veteran's claims for
service connection based on all of the
evidence of record. If any benefit
sought on appeal is not granted to the
veteran's satisfaction, provide the
veteran and his representative a
supplemental statement of the case and an
opportunity to respond thereto.
Thereafter, subject to current appellate procedure, return
this case to the Board for further consideration, if in
order. By this REMAND, the Board intimates no opinion as to
the ultimate disposition of the appeal. No action is
required of the veteran unless he receives further notice.
He does, however, have the right to submit additional
evidence and argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369, 372 (1999).
The law requires that these claims be afforded expeditious
treatment. See The Veterans' Benefits Improvements Act of
1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and
Statutory Notes) (providing that all claims that are remanded
by the Board or by the United States Court of Appeals for
Veterans Claims (Court) for additional development or other
appropriate action must be handled expeditiously); see also
VBA's
Adjudication Procedure Manual, M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03 (directing the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court).
______________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs